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					                                               The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                     Procedure for the management of claims
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           Document Number: 641                              Title: The Policy & Procedure for the
                                                             Management of Claims


           Version Number: 2                                 Document Type: Policy


           Application: Trust Wide                           Content: Administrative


           Author/Originator and Title:        Mrs Fran Seagreaves, Complaints & Legal Services
           Manager


           Date of Issue: April 2008                         Replaces: Previous version

                                                             Description of Amendments: None


           Approved By:                                      Approval Information:

           Clinical Strategy and Performance
           Committee                                         Name:         Dr TP Enevoldson

                                                             Signature: Original held on file in Clinical
                                                             Governance

                                                             Date:         April 2008


           Review Date: April 2009                           Responsibility Of:
                                                             Complaints & Legal Services Manager


           Training Required:          YES                   Name of Trainer/s: Fran Seagreaves


           CHECK LIST:

           Completion of Distribution Information Page                           YES

           Completion of Training Information Page (if required)                 YES




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                                               The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                     Procedure for the management of claims




                                           Training Information Page

                 Document Title:    The Policy and Procedure for the Management of Claims


                 Trainer/s Name & Title:    Mrs Fran Seagreaves,              Complaints       &    Legal
                                            Services Manager

                 Training Commencement Date (provisional): January 2004


                 Training Completion Date (provisional):            Ongoing/monthly




                             Trainee Name                                  Department

                 All staff




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                                            The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                  Procedure for the management of claims




                                      Distribution Information Page

                  Document Title:        The Policy and Procedure for the Management of
                                         Claims

           Dr. TP Enevoldson                  Medical Director
           Mel Pickup                         Chief Executive
           Rosamund Harvey                    Head of Effectiveness and Audit
           Amanda Prendergast                 Head of Risk
           Andrew Maloney                     Head of Human Resources
           Chris Harrop                       Director of Finance
           David Melia                        Acting Director of Nursing and Governance
           Jackie Holt                        Foundation Trust Programme Director
           Sheila Hill                        Director of Service Delivery and Performance
           Julie Riley                        Divisional General Manager, Neurology
           Philippa Murphy                    Divisional General Manager, Diagnostics
           Tricia Anderton                    Divisional General Manager, Surgery
           Kelly Teague                       General Manager, Neurology
           Alison Hoole                       General Manager, Diagnostics
           David Jones                        General Manager, Surgery
           Graeme Mitchell                    Modern Matron




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                                                         The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                               Procedure for the management of claims
                                                  Equality and Diversity Checklist

                                                                          Yes/No                     Comments

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

           • Race or ethnicity (including gypsies or travellers)             no

           • Age                                                             no

           • Nationality                                                     no

           • Gender (Male, Female, Transsexual)                              no

           • Culture                                                         no

           • Religion or belief                                              no

           • Sexual orientation including lesbian, gay and bisexual          no
             people

           • Physical Disability                                             no

           • Cognitive Impairment                                            no

           • Learning Difficulties / Disability                              no

           • Sensory Impairment                                              no

           • Mental Health Problems                                          no
      2.   Is there any evidence that some groups are affected               no
           differently?
      3.   If you have identified potential discrimination, are any          no
           exceptions valid, legal and/or justifiable?
      4.   Is the impact of the policy/guidance likely to be                 no
           negative?
      5.   If so can the impact be avoided?                                  no
      6.   What alternatives are there to achieving the                      no
           policy/guidance without the impact?
      7.   Can we reduce the impact by taking different action?              No


                   If yes is answered to any of the above items the policy may be considered
                   discriminatory and requires review and further work to ensure compliance with
                   legislation

                   If you have identified a potential discriminatory impact of this procedural document,
                   please refer it to Mr. Andrew Maloney, Head of Human Resources, 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:
                   Mr. Andrew Maloney,
                   Head of Human Resources,
                   2nd Floor,
                   The Walton Centre




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                                             The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                   Procedure for the management of claims




                 The Walton Centre
                 for Neurology and Neurosurgery
                 NHS Trust




                 Policy & Procedure for the management of
                 claims




                 Procedure application   -    Organisation-wide
                 Author                  -    Complaints & Legal Services Manager
                 Approved                -    Clinical Strategy & Performance Committee
                 Approval date           -    February 2008
                 Review date             -    February 2010




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                                                             The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                                   Procedure for the management of claims



                 CONTENTS                                                                                          PAGE NO

                 Foreword..........................................................................................     4

                 Introduction .....................................................................................     4

                 Objective ..........................................................................................   4

                 Scope of Policy................................................................................        4

                 Roles & Responsibilities.................................................................              5

                 Definition of a Claim........................................................................          5

                 Claim Types .....................................................................................      6

                 Investigation of a Clinical Negligence Claim ................................                          6

                 Notification of a Claim/Potential Claim..........................................                      7

                 Acknowledgement of initial Correspondence...............................                               7

                 Response to a Request for Disclosure of Records ......................                                 7

                 Claims Abandoned/Settled .............................................................                 10

                 Options to Settle a Claim................................................................              10

                 NHSLA Reporting Requirements ...................................................                       11

                 Investigation of a Non-Clinical Negligence Claim ........................                              11

                 Information Gathering.....................................................................             12

                 NHSLA Claims Reporting Requirements.......................................                             13

                 Process for involvement and Communication Internal & External
                 Stakeholders....................................................................................       14

                 Supporting Staff ..............................................................................        14

                 Training and Resource ...................................................................              15

                 Risk Management............................................................................            15

                 Root Cause Analysis (RCA)............................................................                  16

                 Governance and Reporting ............................................................                  16



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                                                             The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                                   Procedure for the management of claims




                 Compensation Recovery Unit (CRU) .............................................                         17

                 Limitation .........................................................................................   17

                 Monitoring Compliance...................................................................               17

                 Equality Impact Statement..............................................................                18


                 APPENDICES

                 NHSLA Clinical Negligence Reporting Guidelines .......................                                 19

                 Non-Clinical Claims Reporting Guidelines....................................                           36




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                                                The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                      Procedure for the management of claims



                 FOREWORD

                 This procedure demonstrates that the Trust has an agreed process in place
                 for reporting, managing, analysing and learning from claims, in accordance
                 with NHS guidance and Civil Procedure Rules.

                 INTRODUCTION

                 The Trust is committed to ensuring that claims are resolved in a professional,
                 efficient and timely manner. The Trust aims to achieve an equitable outcome
                 for all parties concerned, to take appropriate corrective action and to reduce
                 the risk of future litigation.

                 The Trust is a member of the National Health Service Litigation Authority
                 (NHSLA) Clinical Negligence Scheme for Trusts (CNST) and Existing
                 Liabilities Scheme (ELS) for clinical claims.

                 The Trust is a member of the NHSLA Risk Pooling Scheme for Trusts (RPST)
                 Liability to Third Parties Scheme (LTPS) and the Property Expenses Scheme
                 (PES) for non clinical claims.

                 The NHSLA is a special health authority and part of the NHS. The NHSLA
                 maintains a panel of defence solicitors who may be instructed to defend
                 complex or high value claims.

                 OBJECTIVE

                 The objective of this policy is to ensure that the Trust manages all claims in
                 accordance with reporting guidelines and that all relevant data is collated to
                 enable monitoring and auditing.

                 SCOPE OF POLICY

                 This policy applies to any person directly or indirectly involved in any aspect of
                 any claim at any time, which may be received against the Walton Centre
                 Neurology & Neurosurgery NHS Trust. This policy should be read in
                 conjunction with:

                     •   Policy for dealing with Complaints about Patient Care (Whistleblowing)
                     •   Being Open Policy
                     •   Complaints Policy
                     •   Risk Assessment Policy
                     •   Health and Safety Policy
                     •   Security Policy
                     •   Information Security Policy
                     •   Major Incident Policy
                     •   Root Cause Analysis Policy




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                                                 The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                       Procedure for the management of claims



                 ROLES AND RESPONSIBILITIES

                 The Chief Executive has overall responsibility for claims within the Trust.

                 The Trust has appointed the following individuals to manage, handle and co-
                 ordinate clinical negligence, liability and property claims:

                 Complaints and Legal Services Manager
                 Clinical Governance Department (Ext: 5530)


                 Summary of role: To be operationally responsible for the conduct and control
                                  of Clinical Negligence and Public and Employer Liability
                                  claims.

                                    To provide advice and support for the conduct and control of
                                    all Clinical Negligence and Public and Employer Liability
                                    claims.

                 Deputy Director of Finance
                 Finance Department (Ext: 5730)

                 Summary of role:         To be operationally responsible for the conduct and
                                          control of Property Liability claims.

                 Estates Manager / Hotel Services & Facilities Manager
                 Management Offices (Ext: 5970)

                 Summary of role:         To provide advice and support for the conduct and
                                          control of all Public and Employer Liability claims.

                 All staff

                 Summary of role: It is the responsibility of all staff to co-operate with the
                                  Complaints & Legal Services Manager in the investigation of
                                  claims. This can not specifically be enforced in the event of
                                  the member of staff being the claimant.

                 DEFINITION OF A CLAIM

                 A claim is defined as;

                        Allegations of clinical negligence and/or a demand for compensation
                        made following an adverse clinical incident resulting in personal injury,

                        or

                        any incident which carries significant litigation risk for the Trust,



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                                                The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                      Procedure for the management of claims
                       or

                       a demand for compensation made following an adverse incident
                       resulting in damage to property and/or personal injury.

                 Defining an incident as a ‘claim’ in the absence of a demand for compensation
                 does not necessarily mean that compensation will be paid. It simply means
                 that a preliminary analysis may be required and the claim may need to be
                 reported to the NHSLA.

                 CLAIM TYPES

                 Clinical Negligence – these claims concern acts or omissions as part of
                 clinical care.

                       §    The Walton Centre will handle clinical negligence claims in
                            accordance with the Clinical Negligence Scheme for Trusts (CNST)
                            Reporting Guidelines – Fourth Edition – 1 January 2007

                 Liability to Third Parties (Employer’s Liability, Public Liability, Products
                 Liability and Professional Indemnity) – An employer’s liability or public
                 liability claim is defined as - “A claim for compensation made following an
                 adverse incident resulting in personal injury”. These are claims usually made
                 by staff or members of the public and relate to non clinical incidents.

                            § The Walton Centre will handle employer and public liability
                              claims in accordance with the Liabilities to Third Party Scheme
                              (LTPS) – July 2002 and the new reporting requirements for
                              employer liability (EL) claims issues in July 2006.

                 Property Expenses Scheme – these claims concern damage to property and
                 buildings.

                            §   The Walton Centre will handle claims under the Property
                                Expenses Scheme (PES) in accordance with the reporting
                                guidelines issued through NHSLA/Willis Ltd PES/Aug1999/SC”

                            §   Liability to Third Parties and Property Expenses are managed
                                via the requirements of the Risk Pooling Scheme for Trusts
                                (RPST).

                 INVESTIGATION OF A CLINICAL NEGLIGENCE CLAIM

                 Refer to the CNST Reporting Guidelines attached.

                       The Trust will investigate in detail where claims arise from:
                       •    An incident likely to generate substantial compensation
                       •    Publicly or media-sensitive cases
                       •    Fatal incidents (including suicides of psychiatric patient and
                            unexplained deaths)


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                                               The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                     Procedure for the management of claims
                       •   Misdiagnosis of life-threatening illness
                       •   Serious professional misconduct.


                 NOTIFICATION OF A CLAIM/POTENTIAL CLAIM

                       The usual method of notification is via a solicitor acting on behalf of a
                       claimant. Increasingly, potential claims are identified and notified
                       during incident and/or complaint investigation. Complaints which
                       indicate compensation is being sought will be referred to the NHSLA.

                       Initial claims notification will usually include a request for copy medical
                       records.

                       All claims received are recorded on the Datix Risk Management
                       Database and an electronic ‘bring forward’ diary system is utilised to
                       ensure ongoing management review.

                       The relevant lead managers (Clinical Director, Consultant, Divisional
                       Manager) are informed of the claim via internal correspondence.

                 ACKNOWLEDGEMENT OF INITIAL CORRESPONDENCE

                       Where the claim has been notified by letter; the Complaints & Legal
                       Services Manager will respond via a letter within one week of receipt.
                       The Complaints & Legal Services Manager may need to seek
                       additional information, ie.

                           •   Confirmation that the request for records is made by the patient
                               or someone authorised to act on their behalf (a signed letter of
                               authority from the patient or their personal representative)

                           •   Details of the alleged negligence

                 RESPONSE TO A REQUEST FOR DISCLOSURE OF RECORDS

                       Requests for disclosure of copy Health Records are processed in
                       accordance with the Access to Health Records procedures for
                       disclosure under the Data Protection Act 1998 and the Access to
                       Health Records Act 1990 (for deceased patients).

                       If the request identifies any dissatisfaction with the clinical treatment
                       within the Trust the Complaints and Legal Services Manager will
                       handle disclosure and associated correspondence. Records will be
                       made available to the requestor within the statutory 40 days. Invoicing
                       for copying charges will be in favour of The Walton Centre for
                       Neurology & Neurosurgery NHS Trust. Charges will be levied in
                       accordance with the Data Protection Act 1998.

                       If the time limit of 40 days cannot be complied with, notify the solicitor
                       as soon as possible, and request a reasonable extension of time.

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                                               The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                     Procedure for the management of claims

                       The Complaints and Legal Services Manager will request that a
                       preliminary assessment is undertaken of the Claimant’s health records
                       to establish whether there has been an adverse outcome. A preliminary
                       report will be sought from the treating clinician.

                       A new Datix file will be opened for each case, following a careful check
                       to see if the case was previously known to the Trust (i.e. a previous
                       complaint and/or incident) in which the file entries will be linked and all
                       previous paperwork collected into one file.

                       Check the Claimant solicitor’s letter for accuracy.               The following
                       information should be contained in the letter:

                       •   Details of the Claimant
                       •   Date of the alleged negligent treatment
                       •   Details of the allegations of negligence

                       Acknowledge the letter within 14 days of receipt of the letter. The letter
                       should advise the claimant’s solicitors who will be dealing with the
                       claim and to whom future correspondence should be addressed.

                       On receipt of the Medical Records within the Department, the records
                       will be copied twice. One copy of the records are for the claimant’s
                       solicitor, and one copy to be retained by the Trust.

                       If following an investigation the Complaints and Legal Services
                       Manager is satisfied that an investigation has been undertaken and all
                       the information required is available or that the claim has no substance,
                       then the file should be reviewed on a quarterly basis awaiting a Letter
                       of Claim.

                      The Letter of Claim should contain the following information:

                       •   Date of the alleged negligent treatment
                       •   Details of the allegations of negligence
                       •   Details of the event giving rise to the claim
                       •   Details of the causal link to the injuries
                       •   Details of the injuries, the patient’s present condition and future
                           prognosis
                       •   Estimate of the value of the claim and details of any specific
                           damages claimed
                       •   Request for Health Records together with appropriate consent
                       •   Confirmation as to whether the patient is legally aided

                       The above is not an exhaustive list. If any of the above information is
                       not included then it should be requested from the claimant’s solicitor in
                       the letter of acknowledgement together with any other relevant
                       information.




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                                               The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                     Procedure for the management of claims
                       Once a Letter of Claim has been received a file should be prepared for
                       the NHSLA to include:

                       •   Claim Report Form
                       •   Preliminary analysis according to the NHSLA template (Synopsis,
                           Status of Proceedings, Care Management Problems, Breach of
                           Duty, Causation, Quantum, Claimant’s Funding, Risk Management
                           Implications and Action Plan)
                       •   Reports from treating staff
                       •   Any expert evidence
                       •   CRU details if available
                       •   A full set of copy correspondence between the Claimant and the
                           Trust.

                       A duplicate set of papers should be prepared for the Trust solicitors for
                       higher value claims, when direct instruction is likely to follow. The Trust
                       solicitor will require a set of copy records and x-rays in addition to other
                       listed documents.

                       The Trust will then follow instruction of the NHSLA in respect of further
                       action. In lower value claims (i.e. up to £25,000) then the NHSLA may
                       request that the Trust draft a Letter of Response, which must be
                       approved before dispatch. For higher value claims in most cases the
                       NHSLA will instruct panel solicitors to manage the case in conjunction
                       with the Trust, but taking instructions from the NHSLA.

                       A Letter of Response should be based on the clinicians and / or
                       expert’s views and should contain the following:

                       •   Comments upon the events and chronology
                       •   Comments upon the allegation of negligence and whether they are
                           admitted or denied
                       •   If allegations are admitted the Trust should submit proposals for
                           settlement. Any admissions are binding
                       •   If the allegations are denied a detailed response is required clearly
                           setting out why the allegations are denied.

                       The claimant’s solicitors should refrain from serving Proceedings during
                       the three month period unless there is an issue with regard to
                       Limitation.     Following the three month period they may serve
                       Proceedings at any time, providing there is no issue with regard to
                       Limitation and that the claim is not Statute barred.
                       On receipt of the Proceedings, if not before the claim, this will be
                       notified to the NHSLA.

                       If the matter is to continue to be defended, formal witness statements
                       will be required from all healthcare professionals involved and
                       exchanged with the other side either directly by the Trust, or by the
                       NHSLA




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                                               The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                     Procedure for the management of claims
                       A Case Conference will normally be arranged to take place to discuss
                       the case prior to Trial. This is arranged to test the evidence, prior to
                       proceeding with the action. The clinicians concerned, Counsel and the
                       Trust’s solicitors will attend the conference.

                       For cases proceeding to trial pre-Court preparation is available from the
                       Complaints and Legal Services Manager and the Trust’s legal advisors
                       (Hill Dickinson).

                       Prior to Trial, draft press statements should be agreed with the NHSLA
                       in anticipation of interest from the press.

                       If the NHSLA and the Trust agree to the matter being settled, then the
                       Trust or the NHSLA will seek a Schedule of Special Damages in order
                       to consider Quantum. Negotiation to settlement will be under direct
                       instruction of the NHSLA either to the Trust or to the appointed
                       solicitors.

                       Providing Quantum and Costs can be agreed upon, then the matter will
                       be settled and the file should be closed.

                       If Quantum is in dispute, then the matter may proceed to Trial on the
                       issue of Quantum only.


                 CLAIM ABANDONED/SETTLED

                      If abandoned – close the file on paper and on Datix

                       Inform the healthcare professionals of the departments and thank them
                       for their assistance.

                       Shred copy records, copy and original x-rays to be returned to the
                       Radiology Department.

                       If a claim has no action / correspondence for two years, in spite of
                       reminders then the claim should be closed manually and on the
                       computer database. The file should be stored in a safe place in case
                       the Claimant decides to pursue the matter.

                 OPTIONS TO SETTLE A CLAIM

                 The following are options to settle a claim once a decision has been made to
                 settle a claim, taking onto account the views of the healthcare professionals.

                       Ex-gratia payment – payment used to end very small claims and may
                       be a goodwill gesture in certain claims. There is no admission of
                       liability.

                       Part 36 (Calderbank) offer in settlement of the claim inclusive of costs.
                       This is usually made where there is weakness in the claim, but the


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                                                The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                      Procedure for the management of claims
                       claim can be defended. Claimant’s reasonable costs to date should be
                       paid subject to assessment if not agreed.

                       Payment into Court – Usually without an admission of liability. A
                       payment into Court puts the Claimant at risk with regard to costs. If the
                       payment into Court is not accepted and the matter proceeds to Court
                       and damages are awarded equal to or below the sum paid into Court,
                       the claimant will be responsible for their costs and the Trust’s costs
                       from the date of payment into Court – subject to assessment if not
                       agreed.

                 NHSLA REPORTING REQUIREMENTS
                       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 graded red/serious and investigated under the
                           healthcare 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.

                  INVESTIGATION OF A NON-CLINICAL NEGLIGENCE CLAIM

                      Refer to the RPST Reporting Guidelines attached

                      Upon receipt of a Letter of Claim, usually a solicitors letter relating to:

                       •   Staff injured at work – Employers Liability Claim
                       •   A member of the public injured at The Walton Centre for Neurology
                           & Neurosurgery NHS Trust – Public Liability Claim

                       Acknowledge the letter of claim by return of post giving details of the
                       Trust’s insurers (NHSLA). This is very important as the Trust has 21
                       days to acknowledge the letter. If no response by the Trust, the
                       claimant can apply directly to the Courts to issue proceedings.

                       Write to the NHSLA enclosing a copy of the Letter of Claim, who will
                       acknowledge First Notification and issue a reference number.

                       The Letter of Claim will give details of:




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                                               The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                     Procedure for the management of claims
                       •   The Claimant’s name, address
                       •   Incident date
                       •   Where the incident took place
                       •   Brief outline of the circumstances


                       The Letter of Claim should contain enough information for the claim to
                       be investigated.

                       There will be a description of the claimant’s injury and the letter will set
                       out particulars of why the Trust is at fault.

                       Employer’s Liability – Sustained as a result of the Trusts negligence,
                       and/or breach of statutory duty.

                       Public Liability – failing to discharge a common duty of care owed to
                       a visitor.

                       The letter will also list the documents which must be produced if liability
                       is not accepted.

                       The Trust has 90 days inclusive of the 21 days to investigate and
                       state whether liability is denied or admitted.

                      Standard Disclosure List

                       •   Incident Report Form, Managers Action, Names of witnesses
                       •   RIDDOR report to HSE, any communications with the HSE
                       •   Pre & post accident Earnings Information
                       •   Pre-accident & Post-accident risk assessment required by
                           Regulation 3 of the Management of Health and Safety at Work
                           Regulations
                       •   Minutes of Health and Safety at Work Regulations
                       •   Minutes of meetings where accident is considered
                       •   Maintenance and inspection records

                 INFORMATION GATHERING

                       Contact place of accident, inform the manager and carry out a low level
                       investigation retaining any faulty equipment. Request all relevant
                       information from the appropriate departments including earnings
                       information from salaries and wages and all information listed on the
                       solicitors letter.

                      Complete a Liabilities to Third Parties Incident Report Form.

                       Send copies of all information to the NHSLA and minutes of meetings
                       with Human Resources.




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                                               The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                     Procedure for the management of claims
                       Facilitate Claims Inspector’s visit by arranging appointments with the
                       relevant staff ensuring all information and equipment is available for
                       inspection.

                       Witnesses who may be required to give statements should be
                       contacted and supported.

                      Provide copies of policies, procedures and additional information
                      requested.

                       When authorisation from claimant is received arrange for all Medical
                       Records, Occupational Health Records and Human Resources
                       Records to be sent to the NHSLA.

                       A completed ‘NHSLA Disclosure List’ must accompany all reported
                       claims, indicating which documents are enclosed by means of a tick in
                       the appropriate box. The declaration at the foot must be signed by an
                       Executive Director of the Trust.

                       The Walton Centre for Neurology and Neurosurgery NHS Trust is
                       responsible for ensuring policies and procedures are well documented
                       and circulated to the appropriate people

                       •   Ensure training records are kept and are retrievable
                       •   Set up procedures whereby staff seek to carry out low level
                           investigations

                       It is the Trust’s intention that all reported claims are resolved quickly
                       and efficiently and in accordance with the NHS Risk Pooling Schemes
                       Claims Reporting Requirements.

                       In the event of a settlement being made, a checklist must be completed
                       explaining reasons for settlement and any lessons to be learned. (See
                       Appendix 2).

                       Quarterly losses and compensation reports are made to the Board,
                       detailing the number of claims settled, abandoned etc, and the cost of
                       such claims to the Trust.

                       On the advice of the Trust’s solicitors whenever possible, claims will be
                       repudiated or settled on best terms possible. Every effort will be made
                       to negotiate settlement to avoid costly court proceedings.


                 NHSLA CLAIMS REPORTING REQUIREMENTS

                      All incidents should be reported where a letter of claim is received and
                      the potential value including costs exceeds or is within 20% of the
                      scheme excess.

                      All accidents which have or are likely to result in:


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                                                The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                      Procedure for the management of claims

                         1.   Fatal injuries
                         2.   Amputation of a limb
                         3.   Head injury
                         4.   HSE prosecution
                         5.   Absence of 10 consecutive working days

                 PROCESS FOR INVOLVEMENT AND COMMUNICATION INTERNAL AND
                 EXTERNAL STAKEHOLDERS

                         Should the claim involve or implicate other external agencies, i.e. other
                         Trusts, Her Majesty’s Coroner, Strategic Health Authorities, Police (in
                         accordance with Memorandum of Understanding), National Patient
                         Safety Agency, NHSLA, Health & Safety Executive, Willis Ltd, Fire
                         Brigade, the Legal Department or Finance Department, will apprise
                         them of the same and obtain reports as appropriate. The Trust Chief
                         Executive, Medical Director and Director of Nursing & Governance will
                         be informed of all developments. Any decisions made will be in
                         conjunction either with the Chief Executive, Medical Director or Director
                         of Nursing & Governance.

                         The Head of Risk, together with relevant Divisional Managers, will be
                         kept informed at all stages. All relevant external parties will be kept
                         apprised of any developments as and when the claim progresses.

                         Safety lessons will be shared with internal and external stakeholders
                         following the completion of a claim.

                         Any claims requiring a root cause analysis will be referred to the Head
                         of Risk in order for lessons to be learned. The Trust will report such
                         claims to the NHSLA.


                 SUPPORTING STAFF

                 The process of investigative and procedural issues can occasionally be very
                 time-consuming for staff involved. The progress can also be quite lengthy and
                 some cases will take years rather than months to conclude. This is
                 particularly the status for litigation cases. The Trust acknowledges that staff
                 may find the process of litigation stressful and recognises it is therefore
                 important that staff are appropriately supported.

                 All employees have a responsibility to ensure that staff members are
                 appropriately supported. Further guidance on the subject has been jointly
                 developed by the Head of Risk/Complaints & Legal Services Manager and
                 Human Resources Departments, key aims set out include:

                      o To value, support and protect staff
                      o To provide support in the ‘best interests’ of the individual concerned




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                                                The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                      Procedure for the management of claims
                      o To provide individuals with appropriate and relevant information
                        necessary for them to provide a positive input into any investigative or
                        procedural case
                      o To minimise negative effects on staff caused by involvement in
                        investigations and proceedings
                      o To reduce instances of staff leaving or being absent from the
                        profession due to poor experiences of investigations and/or
                        proceedings
                      o To reduce instances of inappropriate suspension/exclusion of staff
                      o To protect patients and improve service provision

                 The Trust has also adopted the ‘Incident Decision Tree’ (IDT), a framework
                 guidance tool, produced by the National Patient Safety Agency (NPSA)
                 www.npsa.nhs.uk
                 The IDT sets out key sections that refer to staff performance during an
                 incident and the issues for consideration.

                 The Head of Risk/Complains & Legal Services Manager should be the first
                 point of contact for an individual seeking support.

                 TRAINING AND RESOURCES

                 All staff will be made aware of the Trust’s Claims Policy and Procedure via the
                 Trust’s Working in the Modern NHS Study Day.

                 The Claims Policy and Procedure will be made available to all staff through
                 the Trust’s Intranet Site.

                 RISK MANAGEMENT

                 Appropriate risk management action is key to reducing adverse incidents and
                 the resulting claims that may follow.

                 Claims are reviewed to see whether incident and/or complaint documentation
                 has been already created. Incident and/or complaint documentation is copied
                 to the Complaints & Legal Services Manager when it is identified that there is
                 a potential risk of litigation. Reference is also made on the Datix Risk
                 Management Database and claims received that should have been reported
                 at incident stage are notified to the Head of Risk for review.

                 Each claim is assessed by the Head of Risk and the Complaints & Legal
                 Services Manager to consider risk management issues.

                 The Trust has adopted an incident grading system (Trust Risk Grading Matrix)
                 within the Incident Reporting Procedure and this is applied to all claims
                 according to current status.

                 Information regarding risk management is collated on the Claim Synopsis
                 document. Risk management information is also assessed and documented
                 within Advisory Reports by the Trusts’ Solicitors if they are instructed on a
                 case.


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                 Clinical Directors, Lead Consultants, Senior Clinicians and Divisional
                 Managers are responsible for risk management review of individual claim(s).
                 Implementation of appropriate corrective actions arising from claims
                 investigations will be the responsibility of the Clinical Director and/or Divisional
                 Manager for the relevant Specialty(s).

                 Risk management information, where identified, is compiled on individual
                 cases via the Datix Risk Management Database and within Trust wide reports.
                 Risk management issues and any changes in practice are incorporated into
                 the final Claim Outcome Report on conclusion of the claim.

                 ROOT CAUSE ANALYSIS (RCA)

                 The National Patient Safety Agency (NPSA) promotes the practice of root
                 cause analysis to ensure that appropriate investigation methods are applied to
                 find the actual causes of incidents (this generic term includes claims). The
                 Trust will investigate in detail where the incident grading matrix indicates, ie. a
                 graded ‘high’ risk may have an investigation led by senior Trust staff with
                 contribution from individuals who have undertaken a RCA programme based
                 on the tools of the NPSA RCA.


                 RCA is the recommended investigation process essential to all healthcare
                 organisations to enable them to identify the contributory factors that led to an
                 incident occurring. It is important to establish the root causes of an incident in
                 order to avoid early judgement or attribution.

                 The National Patient Safety Agency (NPSA) provide an electronic
                 ‘toolkit’, this is an interactive resource to help guide staff through the
                 RCA process and can be found on the NPSA website address -
                 www.npsa.nhs.uk/rcatoolkit

                 The principles of RCA are applied to each claim alongside guidance on
                 investigation set out in the Trust’s Incident Reporting Policy. The level of
                 investigation applying the RCA principles varies according to the individual
                 claim circumstances. The process is noted within the ‘Claim Synopsis’ for
                 each case as appropriate.

                 GOVERNANCE AND REPORTING

                 The status of all Trust claims, together with policy documentation, progress
                 reports and risk management issues/corrective actions are reported to the
                 following groups;

                 •    Divisional Governance Meeting (monthly)
                 •    Clinical Strategy & Performance Committee (quarterly)

                 COMPENSATION RECOVERY UNIT (CRU)




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                 Where the claimant has received social security benefits as a result of injuries
                 sustained in incidents on or after 1 January 1989, the DSS will recover any
                 recoverable benefits from any damages received by the claimant. The
                 Litigation Manager is responsible for obtaining the National Insurance Number
                 of the claimant for the NHSLA to facilitate the provision of certificate
                 information for the CRU.

                 LIMITATION

                 A claimant will usually have a period of three years from the date of the
                 incident or knowledge of the incident in which to issue a claim for negligence.
                 In the case of an obstetric or paediatric claim, the three year limitation period
                 will commence on the patient’s eighteenth birthday. Limitation will not
                 normally apply to a person incapable of managing and administering their own
                 affairs. Additionally, the Court has discretion to waive limitation periods in
                 some circumstances.


                 MONITORING COMPLIANCE

                 New claims will be reviewed to ascertain whether there are any incident
                 reports, PALS contacts or complaint files linked to the claim.

                 The Disclosure Checklist is completed in compliance with the Trust’s
                 procedure for all claims. The checklist records timescales for disclosure of
                 information.

                 The Claims Synopsis document will be completed during the course of an
                 individual claim. The Claims Synopsis records detailed information regarding
                 the claim, in particular, the form records any issues of liability for the Trust and
                 also applies the principles of Root Cause Analysis (as per the National Patient
                 Safety Agency’s recommended investigation process) to ensure appropriate
                 risk management review and corrective actions.

                 Advisory reports received from Panel Solicitors may contain risk management
                 recommendations and these are included within the Claims Synopsis to
                 ensure in-house risk management review.

                 New and closed claims, together with any particular trends and risk
                 management reviews are reported and discussed at the monthly Complaints
                 Forum meetings.

                 Open claims are reported quarterly to Clinical Strategy & Performance
                 Committee.

                 Compliance with the National Health Service Litigation Authority Reporting
                 Guidelines for the management of claims is reviewed within the annual report
                 submitted to the Clinical Strategy & Performance Committee.




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                 A Claim Outcome Report is completed for all settled claims. This report
                 details key information regarding liability and financial information and it also
                 records risk management review and any corrective actions.

                 Equality Impact Statement

                 This policy has been subject to an Equality Impact Assessment and is not
                 anticipated to have an adverse impact on any group.




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                                  CLINICAL NEGLIGENCE REPORTING GUIDELINES

                                           FOURTH EDITION – JANAURY 2007

                 1.1       The Trust undertakes to follow the guidance that has been developed jointly by
                           the National Health Service Litigation Authority (NHSLA) and the
                           Association of Litigation and Risk Management (ALARM) to provide a
                           framework within which the Trust’s Complaints & Legal Services Manager will
                           report new claims as they arise. The guidance becomes effective as from 1
                           January 2007. It will be the subject of further review periodically.

                 1.2       These recommendations are aimed at securing best professional practice at
                           local level. Through the provision of reliable and complete information from the
                           start of any claim the Trust will be able to ensure that any healthcare
                           governance issues which may emerge are addressed promptly, and that the
                           cost of further investigation, if and when handled by Panel Solicitors, is
                           minimised.

                 1.3       The guidance therefore makes a number of key assumptions:

                       •   That Trusts have in place effective and integrated processes for risk
                           management and for healthcare governance which operate across the entire
                           range of services. For the purposes of this document, clinical governance is
                           included within the wider term.

                       •   That a proportion of complaints will continue to contain demands for
                           compensation.

                       •   That there will, for some time, continue to be wide variations in the abilities of
                           different Trusts to process claims at a local level.

                 1.4       For these reasons this guidance describes a standard of professional practice
                           which is most likely to be attained in Trusts offering acute services, as these
                           give rise to the greatest numbers of claims. Other organisations, such as
                           Primary Care Trusts and smaller mental health Trusts, which generate fewer
                           claims, may not feel able to justify the retention of dedicated expertise at the
                           level that is advocated. This is a matter for individual trusts to decide. In these
                           situations, the appropriate expertise could be bought in from another Trust by
                           way of either a cost per case arrangement, or a service level agreement. This
                           guidance incorporates a minimum standard which will be expected of all Trusts
                           including those generating a small volume of relatively low value claims.

                 1.5       Trusts buying in claims services I the manner suggested above should ensure
                           that appropriate contractual indemnities are in place At present, all claims for
                           compensation arising from allegations of clinical negligence pass through the
                           NHSLA via the Complaints & Legal Services Manager. The Complaints &
                           Legal Services Manager will have a general understanding of the claims
                           management process. As there are now no longer any excesses in the CNST
                           scheme, all claims fall within it, and NHSLA authorisation is required before
                           admissions may be made and monetary compensation may be offered.

                           The Trust recognises that in the absence of such authorisation, the NHSLA will
                           not reimburse for the compensation awarded or for any of the costs generated.



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                           Such payments, if made by the Trust will fall outside the scheme and could
                           possibly result in criticism from auditors.

                 1.6       Following the CMO’s report, Making Amends, in 2003 the NHS Redress Act was
                           passed in November 2006. This outlines a new arrangement for dealing with
                           small clinical negligence claims arising from hospitals. It is planned that prompt
                           investigations will be undertaken by Trusts and that explanations and apologies
                           will be given, together with a report on what action has been, or will be, taken to
                           prevent a recurrence. Existing legal criteria regarding negligence and causation
                           will be retained when determining whether or not financial compensation will
                           also be offered. Full details of the scheme will appear in regulations, after a
                           period of consultation.

                 1.7        Accordingly this procedure is now split into sections dealing with:-

                       •    the initial response to a request for records and/or notification of a claim for
                            compensation [2]

                       •    the preliminary analysis [3]

                       •    reporting claims [4]

                       •    large value claims [5]

                       •    significant value claims [6]

                       •    smaller value claims [7]

                       •    miscellaneous [8]

                       CLINICAL NEGLIGENCE CLAIMS

                       In light of the Pre-Action Protocol for the Resolution of Clinical Disputes and the
                       introduction of the Civil Procedure Rules in April 1999, the following guidelines
                       should be adopted:-


                 2.1       The Request for Disclosure of Records

                 2.1.1 Requests for disclosure of records are usually made under the subject access
                       provisions of the Data Protection Act 1998 and the Access to Health Records
                       Act 1990 (for deceased patients). There are three usual routes for these
                       requests:-

                       •    by a patient or his representative directly (Personal Disclosure)

                       •    by a solicitor requesting records in respect of a claim against another party
                            (Third Party Disclosure)

                       •    by a solicitor acting either to investigate or notify a claim against the Trust (Pre-
                            Action Disclosure)

                 2.1.2      The volume of Third Party Disclosure is by far the greatest and is dealt with via
                            the Medical Records Department. However, for both this and Personal
                            Disclosure, the Trust has in place a procedure for reviewing the records
                            requested to ensure that the provisions of the Act are complied with, and to


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                         note if the record contains information which might possibly cause the
                         requestor to commence a claim against the Trust.

                 2.1.3   Personal disclosure and Pre-Action disclosure are administered by the
                         Complaints and Legal Services Manager within the Clinical Governance
                         Department by the following process:-

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

                         ii.     Verify that care/treatment has been provided to the claimant by an
                                 employee of the Walton Centre NHS Trust and establish the names of
                                 clinician(s) involved.

                         iii.    Locate all medical records (this may include psychology and/or therapy
                                 notes).

                         iv.     Mark records that have been requested under pre-action disclosure as
                                 ‘medical records must not be destroyed – please contact the Clinical
                                 Governance Department’

                         v.      For pre-action disclosure, photocopy all medical records and create a
                                 duplicate case note that includes all records. Duplicate case note must
                                 be clearly marked ‘Duplicate case note – must not be used for clinical
                                 care’.

                         vi.     Acknowledge receipt of patient’s/patient’s representative’s/claimant’s
                                 solicitor’s letter within 2 days, requesting the £10.00 application fee

                         vii.    Check whether there is a complaints file. A copy of the complaints file
                                 should be stored in the pre-action file until conclusion of the claim.

                         viii.   Check if there is a related incident report. A copy of the incident form
                                 should be stored in the pre-action file until conclusion of the claim.

                         ix.     Write to health professional in charge of care, or the relevant service co-
                                 ordinator where the health professional in charge of care is no longer
                                 employed by the Trust, and request the following:

                                 §   In the case of pre-action, a preliminary medical report detailing care
                                     provided and any potential problem(s)

                                 §   In the case of pre-action, identification of other medical staff
                                     involved

                                 §   In all cases, consent to the release of the medical records

                         x.      For pre-action requests, contact the radiology manager and request a
                                 list of all radiological procedures performed relating to the claimant.

                         xi.     Upon receipt of consent to the release of the medical records from the
                                 relevant health professional, calculate charge for copying records up to
                                 a maximum of £50.00 (including application fee) in line with the Data
                                 Protection Act 1998.




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                         xii.    Write to patient/patient’s representative/claimant’s solicitor requesting
                                 cheque for total charge.

                         xiii.   Copies of requested records must be released within 40 days (although
                                 we are working towards disclosure in 21 days following the issue of the
                                 Department of Health Guidance 2004 – Accessing Health Records) of
                                 receipt of the request and the application fee. (Records must not be
                                 released until payment is received).

                         xiv.    Original records must not be released unless there are exceptional
                                 circumstances and only with the permission of the Medical
                                 Director or his nominated deputy.

                 2.1.4   Where it is considered that a claim may arise, or one has been notified (Pre-
                         Action Disclosure), this may be the first indication that an incident has
                         occurred. Increasingly though, the incident reporting system may have alerted
                         the Trust to the event at an earlier time. This will be particularly true where
                         high value cases are concerned. The Trust recognises that the proportion of
                         serious events that are notified initially as claims is a key indicator of the
                         efficiency of the local incident reporting system. A significant proportion initially
                         notified as claims would be regarded as a warning sign.

                 2.1.5   Any claim not previously recorded as an incident, but which is now considered
                         ought to have been, will immediately be reported locally. The investigation as a
                         claim, and as an incident, will then proceed as a single process. Note,
                         however, that if any investigation has such a dual purpose the documents
                         arising from it are likely to be discloseable in subsequent litigation.

                 2.1.6   When a request for disclosure has been made without a claim, the opportunity
                         to ask for the reasons which lie behind the request must be taken. The Trust
                         incorporates this question into the documentation relating to the request when
                         this is made by individuals or by solicitors seeking “third party” access. Of
                         course, the records themselves may well contain sufficient information to
                         enable an educated guess to be made as to the substance of a likely complaint
                         or claim. It must, however, be remembered that the data subject has an
                         absolute right to disclosure under s.7 of the 1998 Act, albeit with certain
                         exceptions [see 2.2.4 and 2.2.5].

                 2.1.7   The Trust will ask the patient or representative to be as specific as possible. It
                         is reasonable to seek clarification as to which records are required and whether
                         the requestor is content to dispense with the copying of records which do not
                         relate or appear to relate to the matter under investigation. Once the nature of
                         the request is reasonably clear, the Trust will consider whether to suggest that
                         alternative means of resolving the issues might be appropriate, for example
                         using the complaints procedure.

                 2.1.8   The Pre-Action Protocol for the Resolution of Clinical Disputes states that
                         “sufficient information” should be provided to enable the Trust to determine
                         which records are relevant and to identify whether further investigation is
                         necessary. The Trust’s obligations to disclose under the 1998 Act do not
                         prevent requests under the Protocol by the Trust for further details, if
                         insufficient information has been supplied in the application.

                 2.1.9   The Records of Deceased Patients are still governed by the Access to Health
                         Records Act of 1990. Applications for copies should only be granted to the
                         personal representatives of the estate or to someone having a claim arising out


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                           of the death. There are additional provisions for withholding disclosure, e.g.
                           where the deceased specifically prohibited this or when information was
                           provided in the expectation that it would not be disclosed to the applicant.

                 2.2       Making the disclosure

                 2.2.1     The Complaints and Legal Services Manager, will ensure that all relevant
                           originals of medical records, supplementary documents, specimens,
                           recordings, charts etc are collated and retained until the conclusion of the
                           claim. Of course, the files may be required for clinical purposes at any time so
                           copies must be made. The Complaints & Legal Services Manager’s copy must
                           be kept up to date in parallel with the original where continuing treatment is
                           occurring.

                 2.2.2     The Trust recognises that copying records in the course of a claim is not a
                           trivial task. It requires skill and patience to ensure that all copies are clear,
                           readable, and of good quality. Copies should be filed into an indexed and
                           paginated bundle, not run off and kept as an undifferentiated pile. Good
                           practice is to use a new medical records case file to create an exact replica of
                           the original, but this should be clearly marked as such to avoid the possibility of
                           it becoming confused with the original. Further indexation may be required
                           where files are large and contain many admissions. Time taken at this stage
                           will avoid wasted effort later on, and reduce the scope for claimant solicitors to
                           generate further queries and requests for clarification. Additional work arising
                           from poor or incomplete copying will certainly rebound in increased costs if the
                           case is lost.

                 2.2.3     To comply with the Data Protection Act, and the Pre-Action Protocol for the
                           Resolution of Clinical Disputes, records must be provided within 40 days
                           (although we are working towards disclosure in 21 days following the issue of
                           the Department of Health Guidance 2004 – Accessing Health Records) of the
                           request and payment of the fee, at a cost not greater than that specified by the
                           Data Protection Act (a maximum of £50, inclusive of copying, but plus postage,
                           at present).

                 2.2.4     The Data Protection Act also specifies a duty to consider if disclosure would:-

                       •   Reveal information likely to cause serious harm to the physical or mental health
                           of a patient or any other individual

                       •   Reveal information relating to or provided by an individual other than the
                           patient (or health professional involved in the care of the patient) who could be
                           identified, and has not given consent to the disclosure [e.g. in paediatric and
                           psychiatric cases].

                 2.2.5     Arrangements to assess records in accordance with this duty prior to disclosure
                           are in place. The Data Protection (Subject Access Modification) (Health) Order
                           2000 gives healthcare providers an exemption from s.7 disclosure obligations
                           (data subject has absolute right to disclosure) provided that the criteria laid
                           down in the Order are met. The Trust has a duty to take advice from “the
                           appropriate healthcare professional” as defined in the Order before forming an
                           opinion as to what, if anything, should be excluded from disclosure. It is
                           essential that such a step is taken because harm can be caused if there is
                           inappropriate disclosure.




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                 2.2.6      At the same time clinicians will be asked for as much additional information as
                            possible, including an analysis of the facts and an opinion as to allegations that
                            may have been made, any adverse outcome or other irregular feature of the
                            case.

                 3.        THE PRELIMINARY ANALYSIS

                 3.1       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
                           undertaken. 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.

                 3.2        Preliminary analysis should normally be completed within forty days of receipt
                            of the request for disclosure, although it is recognised that, in some more
                            complex cases, this target may prove difficult to meet.

                 3.3        Where 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.

                 3.4        Where an incident report does not exist, the medical records should be
                            scrutinised carefully. Discharge letters and summaries are particularly useful,
                            and may often allude to complications that may represent untoward events,
                            and the steps already taken to remedy them. It is important to obtain the views
                            of the clinician in overall charge of the patient, and anyone else who, on the
                            face of it, may have been involved in the care of the individual patient. The
                            information gathered should be measured against the NPSA’s risk rating matrix
                            and the Walton Centre’s Categorisation Model used for incident reporting.

                 3.5        Rating criteria are particularly useful where they have been designed to
                            determine the depth, level, and scope of investigation and reporting within the
                            Trust. The Trust has in place a policy on incident reporting and investigation
                            which will be used to determine the extent of any investigation which may be
                            necessary.

                 3.6       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
                            Trust.

                            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, requests for the disclosure of medical
                            records. Defining an incident as a “claim” in the absence of a demand for
                            compensation does NOT of itself imply that the Trust and/or the NHSLA
                            accepts that compensation will ultimately be paid. It simply means that a
                            preliminary analysis should be carried out and the matter may need to be
                            reported.

                 3.7       The Trust will investigate in detail where “claims” arise from:-

                       •    an incident likely to generate substantial compensation


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                       •   publicly or media-sensitive cases

                       •   fatal incidents (including suicides and unexplained deaths)

                       •   misdiagnosis of life-threatening illness

                       •   serious professional misconduct

                           This list is neither prescriptive nor exhaustive, and includes any cases where
                           there are issues that directly affect the governance of the Trust.

                 3.8       The preliminary analysis should be structured and contain the following sub-
                           headings:-

                               Synopsis and Chronology                brief outline of main events including
                                                                      details of the main parties involved




                               Care Management Problems               all events where care deviated beyond
                                                                      acceptable limits

                               Breach of Duty                         record those 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 may be estimated by the Trust on
                                                                      the basis of information known at the
                                                                      time, using the Judicial Studies Board
                                                                      Guidelines supplemented by advice
                                                                      from the NHSLA. It should represent a
                                                                      best guess of the probable cost to the
                                                                      defendant at the time of resolution of the
                                                                      case and should incorporate figures for
                                                                      both claimant and defence legal costs.
                                                                      Claims staff at the NHSLA will advise
                                                                      the Trust by telephone.

                              Claimant’s Funding                      Public funding (ex Legal Aid), private,
                                                                      CFA [see 8.2] etc.

                              Risk Management Implications What can be learned for the future out of
                                                           the events in question?

                              Action plan                             the next steps recommended, e.g.
                                                                      obtaining expert opinion on causation,
                                                                      obtaining a condition and prognosis




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                                                                    report etc. This section should include
                                                                    assessment of litigation risk as:

                                                                     Low where there is no liability on the
                                                                     part of any party to the claim or the
                                                                     allegations of negligence are not
                                                                     causative of the outcome alleged
                                                                     (nominal 25% liability)

                                                                     Medium where the likelihood of the
                                                                     claimant’s success is equivocal and
                                                                     there is a need for further investigation
                                                                     (nominal 50% liability)

                                                                     High where the claim is viewed as a
                                                                     likely settler or where there has already
                                                                     been an adverse expert opinion, for
                                                                     example in an incident investigation
                                                                     (nominal 75% liability)



                 3.9       In order to achieve this process, the Trust has in place a structure that allows
                           the Complaints and Legal Services Manager to take the following steps:-

                       •   Collection and collation of records including medical records, ancillary records
                           if these are separated, incident reports, complaints files and any data held on
                           computer files which are not routinely printed and stored in hard copy format.

                       •   Discussions with lead clinicians who will be asked to provide reports on the
                           clinical care received and to give an opinion on whether the care fell below an
                           acceptable standard, leading to harm, and to respond in detail to all allegations
                           made. The report must state clearly that it is made in response to actual or
                           contemplated legal action.

                       •   Identification of all relevant staff and their contact addresses, telephone
                           numbers and GMC or other professional reference numbers.

                       •   Following up of requests for information/assistance from the NHSLA.

                       •   Any adverse incident reports should be filed separately from the clinical
                           records. These reports are discloseable, but only following a specific request.
                           If they are filed within the body of the clinical records they become discloseable
                           at the time of the initial request for records and will need to be disclosed at that
                           stage.

                 3.10      It must be borne carefully in mind that reports which do NOT have as their sole
                           or dominant purpose actual or prospective litigation are likely to be discloseable
                           in law. Consequently, care must be taken by staff compiling such reports to
                           restrict themselves to facts and not express opinions which could rebound
                           upon the Trust if litigation is commenced, so far as practically possible.

                 4.        REPORTING TO THE NHSLA




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                 4.1       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:-

                      •     (a) Incidents reported (e.g. a major clinical mishap), graded red (according to
                            the NPSA reporting procedure) and investigated under the Trust’s 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. [4.2.1]

                      •     (b) Claims arising from a complaints investigation where the response, on the
                            facts, indicates that an admission of liability has been implied. [4.3.1]

                      •     (c) Requests for disclosure of records where the preliminary analysis
                            indicates the possibility of a claim with a significant litigation risk, regardless of
                            value. [4.4.1]

                      •     (d)   Letters of claim as the first indication of any action. [4.5.1]

                 4.2.1      In the first group of incidents (a) the requirements of the Trust’s governance are
                            of primary importance in order to ensure the safety of patients. Such incidents
                            should be thoroughly investigated, and will shortly become reportable to the
                            NPSA. Many are already reportable under other regionally managed channels
                            (please refer to the Trust’s Incident Reporting Policy). Investigations must be
                            thorough, open and subject to scrutiny.

                 4.2.2      These requirements pre-empt action in contemplation of a claim. Documents
                            in relation to such investigations will normally be disclosable because their
                            primary purpose relates to governance, not the contemplation of legal action.
                            This means that their content must be factual and avoid opinion and
                            supposition as far as practically possible.

                 4.2.3      Insofar as the facts speak for themselves, their interpretation may amount to an
                            admission of liability but this should not inhibit the Trust from dealing properly
                            and effectively with the remedial action which may be indicated. It should not
                            inhibit frank or open discussion with patients. NHSLA advocates the giving of
                            apologies and explanations where appropriate: see Circular 02/02.

                 4.2.4      This group of claims should be reported in the same way as the third group [for
                            format of reporting see 4.4.2].

                 4.3.1      In the second group of claims (b) it is essential to send to the NHSLA the letter
                            of complaint and any formal correspondence in response. Where the
                            Independent Review procedure has been used, the report of the panel, and
                            particularly any expert opinions that may have been given at the convening
                            stage or during the review, will be required.

                 4.4.1      In the third group (c), where a significant litigation risk has been identified, the
                            matter becomes reportable. First notification/reporting of the case must occur
                            as soon as the preliminary analysis has been completed but not later than 2
                            months after the request for disclosure.

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

                       •    Covering letter supported by the preliminary analysis




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                                                       The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                             Procedure for the management of claims
                       •    A completed CNST claim report form

                       •    Copies of the correspondence from the claimant’s solicitor or the patient

                       •    Copies of comments from clinical staff obtained as part of the preliminary
                            analysis

                       •    Where relevant:- the report of investigation of any adverse incident, or the
                            formal response by the Chief Executive to a letter of complaint.

                 4.4.3      The Trust will liaise with the NHSLA 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.

                 4.5.1      In the fourth group of cases (d) the first notification of a claim may arrive as the
                            formal letter of claim. This may happen where for example the claimant has
                            obtained sufficient medical records from a source beyond the Trust’s control,
                            e.g. the patient’s General Practitioner, or by means of the patient’s own
                            approach to the Trust.

                 4.5.2      Under the terms of the Pre-Action Protocol for the Resolution of Clinical
                            Disputes, a claimant is required to send a letter of claim containing a clear
                            summary of the facts upon which the 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 may arrive before the preliminary analysis is
                            complete. Letters of claim should be reported to the NHSLA within 24
                            hours of receipt.

                 4.5.3      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. The Trust will not give any indication that it is regarded as
                            such, thereby enabling NHSLA or panel solicitors to seek further time if need
                            be. The Trust will acknowledge the letter, and will identify that the NHSLA will
                            be dealing with it. The NHSLA may in turn instruct a panel solicitor, if
                            necessary, who will then contact the claimant’s solicitor.

                 4.5.4      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.

                 5.        LARGE VALUE CLAIMS

                 5.1       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 the 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.

                 5.2.      Thus most of these incidents will be graded at the most severe end of the
                           Trust’s rating/categorisation spectrum. This means that they will be the subject
                           of detailed investigation. The Trust endorses the use of a structured approach
                           to conduct the investigation, determine the root causes of the incident and make
                           recommendations to the Trust Board and considers this to be good practice.


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                                                    The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                          Procedure for the management of claims
                         The Trust’s Policy and Procedure for the rapid follow-up of Major Clinical
                         Incidents describes who is responsible for investigation and the approach that
                         must be adopted by staff at the Walton Centre. This follows the ALARM/UCL
                         Protocol (published by ALARM at the Royal Society of Medicine in 2000) as
                         being specifically developed for use in this situation.

                 5.3.    Annual root cause analysis training is provided for key staff at the Walton
                         Centre.

                 5.3     Purpose of investigation

                 5.3.1   This level of investigation may well take place before a claim is made, and can
                         therefore either replace the preliminary analysis or, in summary form, provide it.
                         Because the investigation process is systematic, comprehensive and based
                         upon human factors, the documentation, report and recommendations will
                         usually provide a complete record of the event. Inevitably it will form the
                         evidence base for the Defence in any subsequent proceedings.

                 5.3.2   The primary or dominant purpose of such an investigation relates to matters of
                         governance and patient safety. The Trust Board now has a clear duty to
                         investigate serious incidents and satisfy itself that all reasonable steps have
                         been taken to prevent a recurrence. This has to be done openly, and within a
                         culture that seeks to learn from the event.

                 5.3.3   This philosophy runs directly counter to the adversarial principles which
                         underpin the conduct of litigation. Thus, a traditional approach to adverse
                         incidents which safeguards future prospects for litigation is no longer possible.
                         It is therefore vital to ensure that investigations are factual, and that both the
                         recommendations and further action are based on evidence rather than
                         supposition and anecdote.

                 5.4     Conduct of Investigations

                 5.4.1   The conduct of investigations at this level is a skilled task which in addition to
                         the use of a structured approach will be undertaken by senior members of staff.
                         Preliminary investigations relating to claims will be conducted by the
                         Complaints & Legal Services Manager.

                 5.4.2. Whilst the dominant purpose of investigations is governance, the possibility of
                        litigation needs to be constantly kept in mind. Thus information must be
                        collected by way of formal statements that can be used by the Defence later
                        on. However, such statements will be discloseable in any subsequent litigation
                        (see 4.2.2) and therefore it is essential that they are both accurate and
                        complete, that they are signed by the clinician, and that only persons trained in
                        statement-taking should prepare them. In problematical cases the Trust may
                        wish to take legal advice in the preparation of this evidence. The Clinical Risk
                        Manager will seek initially seek advice from a member of the Executive Team.
                        This will be a matter for the Trust to consider on an individual basis, as the cost
                        of such advice will not be reimbursed by the NHSLA in the course of defending
                        a claim. However where legal advice is taken, the Trust will instruct one of the
                        NHSLA Panel firms who will be aware of the standards required for defence.

                 5.4.3. 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.




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                                                                          Procedure for the management of claims
                 5.4.4 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.

                 5.5.    Reporting

                 5.5.1   This grade of incident is already reportable to the Department of Health via
                         existing channels and the NPSA. Details of reporting to StEIS are included
                         within the Trust’s Policy and Procedure for the rapid follow-up of Major Clinical
                         Incidents.

                 6.      SIGNIFICANT VALUE CLAIMS

                 6.1     These will form the bulk of claims, with damages valued up to £250,000.

                 6.2     Local conduct after reporting

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

                 6.2.2   Further conduct of this group of cases will be by liaison between NHSLA and
                         the Trust. The Complaints & Legal Services Manager will need to collect
                         detailed statements, either in concert with panel solicitors or the NHSLA or on
                         their behalf. The Complaints & Legal Services Manager’s role will be to keep
                         staff informed as to the progress of a claim, to seek views on the selection of
                         experts and to share their reports with clinicians.

                 6.2.3   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.

                 6.2.4   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 Trust’s Complaints & Legal
                         Services Manager so that clinicians 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.

                 7.      SMALLER VALUE CLAIMS

                 7.1.    These claims are valued at less than £25,000 for damages and will be
                         managed by an NHSLA unit based in Croydon, although initial reporting will
                         be to Napier House.




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                                                                          Procedure for the management of claims
                  7.2     On receipt of the preliminary analysis and supporting documentation, the
                          Croydon unit will seek to resolve the claim quickly wherever possible. After
                          reviewing the case the NHSLA will respond to the Trust indicating 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. The Trust will endeavour to make suggestions to the NHSLA as to
                          speedy methods of local resolution of such cases. See also 7.3.2.

                 7.3.1    Any “ex-gratia” settlements offered 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.

                 7.3.2    Trusts are encouraged to offer non-pecuniary solutions to patients, where
                          appropriate, as these often forestall a monetary claim. Examples include a
                          meeting with the relevant clinician(s), fast-tracking of treatment etc.

                 7.4      Direct contact from the Claimant or Media

                 7.4.1 If the claimant or a representative for the claimant contacts the Trust the
                       following action should be taken:

                         i.     Advise that ‘we’ are unable to comment on an individual case which is in
                                the process of litigation.

                         ii.    The official channel of communication is via the claimant’s solicitor and
                                the Trust’s solicitor.

                         iii.   If and when the case goes to Court naturally this will attract media
                                attention.

                         iv.    Upon notification of the Court date, the Complaints and Legal Services
                                Manager should contact the Corporate Services Manager to
                                consider/prepare an official response to the media.

                 7.5      Resolve

                 7.5.1    Resolve is a fast-track scheme designed to conclude promptly smaller claims
                          (up to £15,000 damages) which are considered to be relatively straightforward.
                          The scheme responds to criticisms contained in the National Audit Office report
                          Handling Clinical Negligence Claims in England, published in May 2001. The
                          scheme is in pilot form in order to test the concepts. It is a joint venture
                          between Litigation Protection Ltd., AVMA and NHSLA.

                 7.4.2    Briefly, claimants contact an AVMA panel member which will then seek the
                          medical records in the usual way and liaise with Litigation Protection Ltd which,
                          following a review of the papers, may accept the case under the Resolve
                          scheme.

                 7.4.3    28 days have been allowed in the scheme for supply of records by Trusts. This
                          is shorter than provided for in the Data Protection Act.

                 7.4.4    If the claimant’s solicitors nominate a case for consideration under the scheme,
                          the papers will be referred to NHSLA at once.




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                                                                         Procedure for the management of claims
                 7.4.5   There is provision for a joint agreed expert on breach of duty and causation.

                 7.4.6   If the joint report favours the claimant then, following receipt of condition and
                         prognosis evidence, a settlement a figure will be proposed on behalf of the
                         claimant. Where agreement is not reached, an Adjudicator (independent
                         barrister) will be appointed to rule on the case.

                 7.4.7   If the expert’s report is negative the case will be discontinued and NHSLA will
                         pay the expert’s fee.

                 7.4.8   Where claimants are successful the overall outlay will be limited to damages,
                         independent expert’s fee, Resolve fee and, if applicable, the Adjudicator’s fee.
                         In other words, there will be no defence legal costs at all.

                 7.4.9   If the Trust receives a questionnaire from Resolve as part of the pilot scheme
                         IMMEDIATE advice must be sought from the appropriate Team Leader at the
                         NHSLA before responding to the request to participate.

                 7.4.10 Detailed guidance will be issued to the Trust when the scheme has completed
                        its pilot and has been evaluated.

                 8.      MISCELLANEOUS

                 8.1     Compensation Recovery Unit (CRU)

                         In all cases the requirements of the Compensation Recovery Unit for reporting
                         cases and obtaining certificates of benefits recoverable remain. This task will
                         be handled centrally by the NHSLA, so the Clinical Risk Manager will need to
                         obtain the National Insurance numbers of all claimants at the earliest
                         opportunity. Where a request for records is made using the Law Society/DoH
                         protocol forms this information will be available, otherwise it must be sought
                         promptly.

                 8.2     Conditional Fee Agreements

                 8.2.1   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.

                 8.2.2   Claimants entering into Conditional Fee Agreements on or after the 1st April
                         2000 may be able to recover the success fee charged by solicitors. This may
                         be as high as 100% of the solicitors’ standard charges. They may, in addition,
                         be able to recover the reasonable premium for any insurance they may take
                         out to cover defendants’ costs and unrecovered disbursements.

                 8.2.3   Pre-action, there is no obligation on claimants to reveal the existence of a
                         Conditional Fee Agreement, but the Clinical Risk Manager will none-the-less
                         enquire 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.

                 8.2.4   The level of success fee and insurance premium uplift will not normally be
                         disclosed until damages have been paid. Therefore the Trust will not be able
                         to challenge these details until the claimant’s costs are submitted for payment.

                 8.3     Mediation/Alternative Dispute Resolution (ADR)



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                                                                         Procedure for the management of claims
                         Mediation 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. The Trust will always consider 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.

                 8.4     Claimant’s Part 36 Offers

                 8.4.1   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. The Trust recognises that 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.

                 8.4.2   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.

                 8.4.3   The Trust will not give any indication to the claimant’s solicitors that any such
                         offer is valid, or that time runs from a particular date.

                 8.4.4   Where such letters are received in other parts of the Trust, e.g. the Chief
                         Executive’s office, staff must be trained to recognise solicitors’ letters and
                         develop a fast track to process them.

                 8.5     Indemnity

                  8.5.1. The NHSLA are aware that there is anxiety among members surrounding
                         possible reservation of the Authority’s rights under the scheme.

                  8.5.2. The Trust is aware that there have been occasions when that course of
                         action has proved necessary although it is only the rarest of circumstances
                         that NHSLA have declined to indemnify member trusts.

                  8.5.3. The NHSLA recognise that a judgement has to be made when deciding
                         whether or not to report circumstances which might give rise to a claim. It
                         may be that opportunities for not doing so will reduce given the NPSA
                         reporting mechanism. If a claim for compensation is made, the decision is
                         straightforward: the case needs to be reported to the Authority.

                  8.5.4. In instances where it appears that there has been a delay in reporting, the
                         NHSLA will usually only raise the issue if it appears that the prospects of
                         defending the claim has been prejudiced and/or a liability for increased
                         damages and/or costs has arisen as a result of the delay.

                  8.5.5. It is not possible to be prescriptive as to every circumstance which may give
                         rise to prejudice and the NHSLA will consider each set of facts individually.

                  8.5.6. The Complaints & Legal Services Manager will always speak to the NHSLA,
                         on behalf of the Trust, if there is any doubt about particular circumstances
                         and whether they should be reported or not.

                  8.5.7. Indemnity for Pre-Reporting Independent Experts’ Fee



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                                                                          Procedure for the management of claims


                         Where the Trust considers an independent report from an expert is desirable
                         prior to reporting to NHSLA either a set of circumstances or a claim, provided
                         NHSLA authority has been sought as to the choice of expert and the report
                         advances the claim or investigation, the Authority will reimburse that cost.


                 8.6     Applications for Standard Disclosure

                          All applications for standard disclosure must be processed according to the
                          provisions of the 1998 Act. Where the Trust fails to provide solicitors with
                          standard disclosure under the 1998 Act (other than under one of the statutory
                          exceptions), or otherwise, and those solicitors issue a court application to force
                          disclosure, the NHSLA will not reimburse the legal costs involved in any such
                          application.

                 8.7      Liaison Between the Trust and the NHSLA

                 8.7.1    NHSLA or their solicitors will advise the Trust in advance of conferences with
                          Counsel and court hearings. Trust officers, on behalf of the Trust, will sign
                          Defences and other relevant pleadings, as the Trust, and not NHSLA, is the
                          legal Defendants to litigation.

                 8.7.2    Where court hearings are likely to generate media interest, the Trust will agree
                          with the NHSLA beforehand a press release or position to be adopted.

                 8.7.3    NHSLA will issue a closure document to the Trust at the end of each claim,
                          which will include inter alia a breakdown between damages, claimant costs and
                          defence costs. Risk management lessons to be learned will be advised as and
                          when such issues are identified during the course of a claim.

                 8.7.4    NHSLA will liaise with the Trust throughout each claim in accordance with
                          Appendix E.

                 Summary of Clinical Negligence Reporting Requirements

                          Requests for disclosure of medical records to be processed within 40 days;
                          Check that sufficient initial information has been provided by patient or adviser
                          and request more if necessary;
                          Collect, retain, paginate and index relevant records;
                          Undertake preliminary analysis;
                          Have system in place for identifying adverse incidents, significant litigation risks
                          etc;
                          Report relevant cases to the NHSLA within 2 months of request for records or
                          sooner if event is serious;
                          All letters of claim and Part 36 offers to be notified to the NHSLA immediately;
                          Acknowledge letters of claim within 14 days;
                          Detailed response due within 3 months;
                          All legal proceedings to be notified immediately.




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                                                                        Procedure for the management of claims




                                                        Appendix

                                               NHSLA Feedback to Trusts

                       §     Acknowledgement and initial view of claim
                       §     Advise Trust if Proceedings likely, media interest, conferences, trial or
                             mediation

                       §     Obtain Trust agreement if admissions are proposed
                       §     Advise Trust when negotiations are entered into
                       §     Defence Solicitor to forward copy reports to trust.




                 NHSLA will liaise closely with trusts where any of the following feature:
                       §     MP involvement
                       §     Media attention
                       §     Human Rights issues
                       §     Multi party actions/serial offenders
                       §     Novel, contentious or repercussive claims




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                 NON-CLINICAL CLAIMS REPORTING GUIDELINES

                 Issued to all Members of the Liabilities to Third Parties Scheme (LTPS)

                 1     Introduction

                 1.1   These guidelines are intended to assist personnel involved in
                       processing all categories of claim under LTPS, but predominantly EL
                       and PL claims.

                       Members should be completely familiar with the Scheme Rules and
                       nothing in these guidelines is intended to override the Rules.

                       The Scheme Rules may be downloaded from the ’Documents’ section
                       of the NHSLA website at www.nhsla.com

                 1.2   These guidelines have been developed to provide a framework within
                       which Members should report new claims to the NHSLA as they arise.

                 1.3   Receipt by a Member of an EL or PL claim involving personal injury will
                       usually trigger the Pre-Action Protocol for Personal Injury Claims.

                       The ‘Protocol’ sets in train a timetable that requires responses within
                       specific timescales.

                       There is as yet no protocol for property damage only claims, but the
                       Courts will still expect the parties to act in the spirit of the personal
                       injury protocol.

                 1.4   Reporting of new claims should be made by way of the standard LTPS
                       Incident Report Form.

                       If a Member wishes to claim under the Scheme it is imperative that
                       there is reliable and complete information sent to the NHSLA at the
                       first opportunity.

                 1.5   Where delays occur and where the required information is incomplete
                       or not readily available, this can prejudice delivery of the specified
                       responses required by the Protocol timetable. Increases in costs that
                       arise from delays attributable to the Member are not covered by the
                       Scheme.

                 1.6   Members should have effective and integrated processes in place for
                       complying with relevant Health & Safety legislation, together with
                       proper measures through line management to ensure the earliest
                       recording, investigation and assessment of incidents, irrespective of the
                       likelihood of a formal claim.




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                                                                     Procedure for the management of claims
                 1.7   Claims should pass to NHSLA via a nominated representative, who
                       should have a thorough understanding of the claims management
                       process.

                 1.8   Where a claim is being made under the Scheme NHSLA authorisation
                       is required before admissions are made and/or any compensation
                       offered.

                       There is no obligation under the Scheme for Members to be granted
                       assistance where admissions and offers have been made by the
                       Member in the absence of NHSLA authorisation.

                 2     Contact with NHSLA
                       Members may contact the NHSLA non-clinical claims office at:

                            6th Floor, Leon House
                            High Street
                            Croydon
                            CR0 1XT

                            DX 146660 Croydon 28                    Fax: 020 8633 8951

                       Current Team Leaders:

                            Michael Laing (Tel: 020 8633 8973) - Members A to M

                            David Duguid (Tel: 020 8633 8971) - Members N to Z

                       The LTPS Scheme Manager is Steve Chahla (Tel: 020 8633 8981)

                       More local contact is via the Member’s allocated Claims Inspector,
                       where that person has been instructed to conduct investigations on
                       site.

                       A more detailed NHSLA contact sheet is periodically updated and
                       circulated to all Members.


                 3     When should NHSLA be notified?
                 3.1   Members are required to immediately report incidents or claims where
                       the total cost of the case will approach or exceed the Scheme ‘excess’.

                       The standard ‘excesses’ applying under LTPS are:

                       £10,000    Employers Liability claims

                       £ 3,000    Public Liability claims



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                                                   The Walton Centre for Neurology and Neurosurgery NHS Trust
                                                                         Procedure for the management of claims
                           Members should bear in mind that Scheme ‘excesses’ apply to the total
                           value of a claim; that is, damages, plus any Claimant and Defence
                           solicitors costs, and Members should take into account an estimate of
                           costs when deciding whether the claim is likely to exceed the
                           applicable excess.

                 3.2       NHSLA offers a handling service for claims falling within the ‘excess’,
                           subject to a small handling fee which currently stands at £200 per
                           claim.

                       The handling of such claims by NHSLA remains subject to the Scheme
                       Rules, as per the small claims handling letter sent to all Members in
                       1999.

                           The handling fee itself is subject to revision from time to time.

                 3.3   A claim is defined as:

                           ‘a demand for compensation made following an adverse incident
                           resulting in damage to property and/or personal injury’.

                 3.4       In addition NHSLA encourages Members to report serious adverse
                           incidents and/or serious adverse outcomes representing a significant
                           litigation risk prior to an actual demand for compensation being made.

                           These may come to light through:

                           -    Normal in-house Incident recording/investigation
                           -    Complaints which look highly likely to lead to claims
                           -    Other matters identified through Risk Management processes

                 3.5       NHSLA seeks early notification particularly where the following features
                           arise:

                       -        MP involvement
                       -        Media attention
                       -        Human Rights issues
                       -        Multi-party actions
                       -        Multiple claims from a single cause
                       -        Novel, contentious or repercussive claims

                 3.6       Accepting notification of any matter or incident as a ‘claim’ in the
                           absence of a demand for compensation does not of itself imply that
                           NHSLA agrees that compensation will ultimately be payable.

                 3.7       Once the case has been notified under LTPS, the Scheme Rules
                           require that the following also be notified to NHSLA immediately upon
                           receipt:

                           -      Any further correspondence from or on behalf of the Claimant
                                  (particularly any letters triggering time limits under the Pre Action


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                                                                         Procedure for the management of claims
                                  Protocol for Personal Injury Claims – for example, Part 36 Offers
                                  to settle or nomination of medical experts)

                       -        Any proceedings or written notice thereof

                 4     Action in response to a notification of a claim for compensation

                 4.1       The Protocol requires Claimants to send a formal ‘Letter of Claim’
                           containing a clear summary of the facts upon which the claim is based,
                           including the main allegations of negligence, the nature of the injuries,
                           present condition and prognosis, and any financial loss.

                 4.2       The Letter of Claim triggers specific time limits, indicating that the legal
                           process has commenced, and there will be 3 months to respond
                           formally.

                 4.3       There are also incidents not necessarily the subject of a formal Letter
                           of Claim that require Members to commence immediate investigation
                           and the collation of documentation. These are generally of a more
                           serious nature, for example:

                           Health & Safety Executive investigations
                           Fatalities
                           Serious head injuries.
                           Amputations.

                           This list is not exhaustive and if Members are in doubt as to whether an
                           incident is ‘serious’ they should seek advice from the NHSLA.

                 4.4       Members have 21 days to issue an acknowledgement to the Letter of
                           Claim and thereafter three months in which to complete liability
                           investigations.

                           Members should commence gathering information and relevant
                           documents immediately upon receipt of the Letter of Claim.

                           If possible all relevant information and documentation relating to the
                           claim should be sent to NHSLA with the LTPS Report Form as part of
                           the first notification (see Sections 1.4 and 1.5 of these guidelines).

                           In the response to the Letter of Claim Members should advise
                           Claimants that the matter is being passed to NHSLA for handling.

                 4.5       Members should try as far as possible to carry out the following steps
                           immediately upon receipt of a Letter of Claim:-

                           4.5.1 Collect and collate records and any other information relating to
                                 the incident and the person(s) involved, including incident
                                 reports, complaint files and any data held on computer files
                                 which are not routinely printed and stored in hard copy format.



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                       4.5.2 Identify all relevant personnel and their contact addresses and
                             telephone numbers.

                 4.6   Members should be aware that reports which do not have as their sole
                       or dominant purpose actual or prospective litigation are likely to be
                       discloseable.

                       This means that their content ought to be factual and avoid opinion and
                       supposition as far as practically possible.

                       The interpretation of such reports may amount to an admission of
                       liability but this should not inhibit Members from dealing properly and
                       effectively with any remedial action that may be indicated.

                 4.7   Matters with no prior record or incident investigation

                       Where a Letter of Claim relates to an incident not previously recorded
                       and/or not previously internally investigated by the Member immediate
                       action should be taken to implement the appropriate investigations.

                       The urgency arises because of the Protocol timescales (see Sections
                       1.3 and 4.4) for delivering a reasoned response to the Letter of Claim.

                       The usual investigations in respect of a previously unrecorded incident
                       and any additional investigations arising directly from the Letter of
                       Claim should proceed urgently as a single process.

                       Note: documents arising from investigations with such a dual purpose
                       are likely to be discloseable in subsequent litigation (see Section 4.6)

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

                       -       Covering letter clearly indicating a new notification is attached
                       -       Completed LTPS Incident Report Form
                       -       Copies of the correspondence from the claimant’s solicitor
                       -       Any prior correspondence, e.g. initial letter/s of complaint
                       -       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 Member 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”.

                 4.9   NHSLA will liaise with the Trust regarding the information submitted
                       and any further investigations required. NHSLA may decide to instruct
                       solicitors and will do so directly but in collaboration with the Trust.




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                 5     Miscellaneous

                 5.1   Ex-Gratia payments

                       ‘Ex-gratia’ settlements offered by a Member are by definition not
                       payments based upon legal liability and are therefore not reimbursable
                       under LTPS.

                 5.2   Compensation Recovery Unit (CRU)

                       The requirements of the Compensation Recovery Unit for reporting
                       cases and obtaining certificates of benefits recoverable remain.

                       For all claims made under the Scheme this task will be handled
                       centrally by the NHSLA.

                       Members should as far as possible try to identify and provide the
                       National Insurance numbers of all employee or patient Claimants.

                 5.3   Mediation/Alternative Dispute Resolution (ADR)

                       ADR can take one of a number of different forms, for example, a time-
                       limited discussion. Mediation is a specific form of ADR and involves a
                       trained mediator to facilitate settlement. The NHSLA is committed to
                       ADR and Mediation in appropriate circumstances as a means of
                       resolving disputed claims. Claims of relatively limited financial value,
                       but possessing major emotional elements, for example, the death of a
                       child, might be suitable candidates. All cases, however, may
                       potentially benefit from mediation or ADR at any stage.

                 5.4   Claimant’s Part 36 Offers

                       It is possible that these may be made at an early stage, even where the
                       first notification is a Letter of Claim.

                       Punitive consequences may flow from offers made under CPR Part 36
                       which are either rejected or fall out of time.

                       Therefore any such offer, whether or not the Member believes the
                       terms of the offer to be valid, should be immediately reported to NHSLA
                       by telephone and fax. This must happen as soon as the documents are
                       received as it is extremely important to avoid delay.

                       Members should not give any indication to the Claimant’s solicitors that
                       any such offer is valid, or that time runs from a particular date.

                       Where such offer letters may be received in other parts of the Members
                       operation (for example, the Chief Executive’s office) staff working in
                       these areas should be trained to recognise such offers and Members
                       should develop a fast track to process them.



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                 6     Scheme Indemnity
                 6.1   NHSLA is aware that there is anxiety among Members surrounding
                       possible reservation of the Authority’s rights under the Scheme.

                 6.2   Whilst occasionally that course of action has proved necessary, it is
                       only in the rarest of circumstances that NHSLA has declined to
                       indemnify.

                 6.3   NHSLA recognises that a judgment has to be made when deciding
                       whether or not to report a case in accordance with section 3 of these
                       guidelines.

                 6.4   Where there have been delays in reporting NHSLA will only raise the
                       issue where there has been prejudice caused by identifiable additional
                       case cost (see Sections 1.3, 1.4 and 1.5 of these guidelines).

                 6.5   It is not possible to be prescriptive as to every circumstance which may
                       give rise to prejudice and NHSLA will consider each set of facts
                       individually.

                 6.6   Members are encouraged to speak to the Authority if there is any doubt
                       about particular circumstances and whether they should be reported or
                       not.


                 7     Liaison between NHSLA and Trusts
                 7.1   NHSLA will discuss and consult with Members on the defensibility or
                       otherwise of claims before implementing the decision reached.

                 7.2   Risk M-anagement issues not identified by Members in their initial
                       incident investigation will be raised and discussed with the Trust
                       contact as the claim investigation progresses.

                 7.3   NHSLA or its solicitors will notify Members of conferences with Counsel
                       and Court Hearings.

                 7.4   Where required Defences and other relevant pleadings will continue to
                       be signed by Member representatives as the legal Defendants to
                       litigation.

                 7.5   Where claims are likely to generate media interest, NHSLA will liaise
                       with the Trust to agree a press release or the position to be adopted.

                 7.6   NHSLA will send a closure document to Trusts at the end of each
                       claim, giving a breakdown between damages, Claimant costs and
                       Defence costs.




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                 7.7   Upon conclusion of the claim NHSLA will raise an invoice in respect of
                       any applicable Scheme excess or such lesser amount reimbursable
                       under the Scheme Rules.


                 Summary of RPST Reporting Requirements
                 ▪     Have a system in place for identifying and appropriately investigating
                       and documenting adverse incidents as soon as they are discovered.

                 ▪     Report all Letters of Claim to NHSLA immediately with a completed
                       LTPS Report Form and all existing accident records, reports, and
                       related documents.

                 ▪     Acknowledge all Letters of Claim within 21 days.

                 ▪     All subsequent letters and in particular all Part 36 offers to be notified to
                       NHSLA immediately.

                 ▪     Ensure priority is given to identifying, creating and sending further
                       documents and information requested by NHSLA on any claim.

                 ▪     Priority assistance to NHSLA or others acting as their agents in
                       identifying and making available the personnel relevant to issues
                       arising in any claim.

                 ▪     All legal proceedings to be notified immediately.




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                 This information can be translated on request or if preferred an interpreter can
                 be arranged. For additional information regarding these services please
                 contact the Walton centre on 0151 529 8511




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