NEGLIGENCE CLAIM When to do a preliminary analysis A Preliminary analysis must be carried out on receipt of all actual or potential claims. As a guide, in respect of potential claims, it is suggested that PCT‟s complete a preliminary analysis in the following circumstances: on receiving requests for access to records that indicate a potential claim following incidents or complaints where it is likely that a claim may ensue high value or publicly sensitive cases. Preliminary Analysis must be started and when possible completed within the forty days allowed for the disclosure of records under the Pre-Action Protocol. In many cases it will take two calendar months but the provision of copy records within the prescribed period must not be delayed. Once all relevant records (to include the complainants file, adverse incident reports and previous investigations) have been collated, a report should be prepared in all cases. In order to complete the preliminary analysis, it may be necessary to discuss the potential claim with the relevant healthcare professionals. What to include in a Preliminary Analysis: The report must state whether it has been prepared in response to an actual or potential claim, and should include the following: Synopsis and Chronology - A brief outline of main events including details of the main parties involved. Breach of Duty - Record those care 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 - the Patient Services Manager on the basis of information known at the time should estimate this with 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 the claimant‟s and the Defendant‟s legal costs. Claimant’s Funding - How the Claimant is funded. Risk Management - What can be learned for the future out of the events in question. Future conduct of claim - The next steps recommended. Assessment of the litigation risk - Low, Medium or High. A preliminary analysis, which is created in relation to a potential claim, is likely to subject to “privilege” and as such is not likely to be subsequently subject to disclosure. However, reports that do not have as their sole or dominant purpose actual or prospective litigation are likely to be discloseable, so care must be taken to restrict the report to facts only and not to express opinions.
Appendix B DELEGATED AUTHORITY Delegated Authority to the PCT by the NHSLA: The NHSLA delegate‟s authority to the PCT Board to make special payments and this is determined by the nature of the claim, the date of the incident from which the claim arose, and the NHSLA indemnity in place at the time. Employer and public liability claims up to 31/5/99 The PCT has a liability to pay up to an excess of £3k. The PCT has delegated authority to pay up to the level of excess. The Trust Board has delegated authority to the Directors within the PCT according to Appendix C of the Reservation of Powers and Scheme of Delegation (available on the intranet). Claims under contract and statute after 31/5/99 The Liabilities to Third Party Scheme does not provide cover for claims made under contract or statute including claims heard by an Employment Advisory Tribunal and the PCT is not permitted to obtain commercial insurance. The PCT has delegated authority to make payments in respect of these claims as detailed in Appendix C of the Reservation of Powers and Scheme of Delegation.
Appendix C DISCLOSURE Applications for disclosure: An application for disclosure under the Data Protection Act 1998 may be made by: the data subject in the case of a child, the person with parental responsibility in the case of patients who lack the necessary mental capacity to request their own records, a person who has been appointed by a Court to manage their affairs. Permission to Disclose from an “appropriate health professional” Before Medical records are disclosed to any party, permission to disclose must be obtained from an “appropriate clinician”, in accordance with the Data Protection Act 1998 because: The clinician will be able to identify at this stage any information held within the notes which he/she feels should not be disclosed (the “serious harm exemption”). To put the clinician(s) on notice that there is a potential claim against the PCT for a negligent procedure carried out by him/her. To obtain early comments that the clinician may wish to make in relation to the treatment of the Claimant. The identity of the lead clinician is usually apparent from the information provided by the Claimant's solicitor. Often there will be information in the Letter Before Action/Letter of Claim or Authorisation to disclose which details when the alleged negligence took place. From this, the history sheets or correspondence within the records should enable the correct clinician, or at least the correct department, to be identified. Locating Staff The Human Resources Department are able to locate a member of staff's personnel file if they are provided with a name, job title and department. For professional staff, the personnel file should contain a registration number and possibly an address. Whilst it is possible that the member of staff may still be living at the address given, the registration body should be able to provide an up-to-date address if necessary. If the Human Resources Department is unable to provide a registration number, there are 2 options: The registration body may be able to identify the person from just their name. The clinician in charge of the particular department, or any clinicians who have already made comments, may know how to contact the missing clinician. If there is a need to contact other staff and there is no up-to-date address on the personnel file, the first point of contact should be the department in which the person used to work to see if anyone can provide information, which may assist. Non-health records All other records identifying a patient are also accessible under the Data Protection Act, such as complaints documentation and internal inquiry reports. Unlike in the case of health records, there is no formal requirement to consult an “appropriate health professional” and the “serious harm” exemption does not apply. However, if there is a possibility of such “serious harm”, legal advice should be sought by the Patient Services Manager.
Appendix D A. CLINICAL CLAIMS Requests for Access to Health Records – general guidelines: A request for access to medical records may indicate that no litigation is contemplated. Usually however, the first indication of a potential clinical claim is a request for access to Health Records (i.e., a subject access request under the Data Protection Act 1998 or (where a patient has died) a request under the Access to Health Records Act 1991, indicating that litigation is contemplated, accompanied by a pre-action letter or a Letter of Claim. In these circumstances the Manager of the service must send a copy of the request to the Patient Services Manager, so that a potential claims/or claims file can be set up. All requests for disclosure must contain an authority to disclose and a clear list of the records to which the patient/claimant requires access. This must be signed by the patient/claimant or by their lawful representative if they are a child (i.e. under 18), under a mental disability or deceased. If the records are to be disclosed to any other parties, this must be clearly stated. If there is either no signed authorisation to disclose or an inadequate authorisation to disclose, sufficient authorisation must be obtained before the records are released. For further information see the Access to Health Records Policy. Requests for access to Medical Records indicating that no litigation is contemplated: Take the normal steps to complete the request in accordance with the access to Health Records Policy. Requests for access to Medical Records indicating that litigation against the PCT is contemplated: When the request for access to medical records comes directly from the Claimant's solicitor, it should contain the following: A Letter before Action/Letter of Claim The patient's signed Authority to disclose the records to their solicitors In order to comply with the Pre-Action Protocol, copies of discloseable records must be provided within 40 days of the request and within 20 days if the records have been accessed 20 days prior to receipt of the request. The following steps should be taken: Request the original records from the relevant Manager. Arrange for the original records to be photocopied, and check the copies against the originals to ensure that they have been copied correctly. Obtain permission from an “appropriate health professional” prior to disclosure (see Appendix C). If permission is granted by an “appropriate health professional”, send out copies of the medical records to the Claimant/Claimant‟s solicitor. Only copies of records should be sent out. Due to the nature of the information, if any records are to be posted they should be sent by Recorded Delivery to ensure confidentiality and safety of the records.Reporting a clinical claim/potential clinical claim to the NHSLA: Reportable claims must be reported to the NHSLA within two months of the request for disclosure, on the basis of the information to hand at the time, irrespective of whether the preliminary analysis and concluding report are finalised. The Patient Services Manager should send the following documents to the NHSLA Covering letter supported by the preliminary analysis. CNST Claim Report Form. Copies of correspondence from the patient or the patient‟s solicitor. Copies of any adverse incident Report Form, investigation or formal letter of response by the Chief Executive to a letter of complaint. Copies of comments obtained from staff as part of the preliminary analysis. B. LTPS CLAIMS (Employers Liability and Public Liability claims) These are covered by the LTPS part of Risk Pooling Scheme for PCT‟s (RPST), which is run by the NHSLA.
Appendix D A copy of the relevant records should be obtained from the Associate Director (e.g.: accident reports book entry; letter of complaint; risk management report), and should be retained on file. The relevant Director and Director of Finance should be informed of the claim and kept advised of progress. Reporting an LTPS claim/potential LTPS claim to the NHSLA With effect from 1st August 2006 all new LTPS claims reported to the NHS Litigation Authority must include the following documentation: NHSLA LTPS Report Form Letter of Claim All documents relating to the type of claim being reported. Sample lists taken from the Pre-Action Protocol for Personal Injury Claims are enclosed in the form of a new „NHSLA Disclosure List‟. A completed „NHSLA Disclosure List‟ must accompany all reported claims, indicating which documents are enclosed by means of a tick in the appropriate box. An Executive Director of the organisation e.g. Chief Executive or Finance Director must sign the declaration. Upon receipt of a Letter of Claim members should promptly identify the type of claim and complete the „NHSLA Disclosure List‟ having identified the relevant documents. For every Workplace claim the first page of the „NHSLA Disclosure List‟ must be completed, together with the appropriate page relating to the specific type of Workplace claim. Claims will not now be accepted into the Scheme without the necessary documents. Where no „List‟ and documents are attached the NHSLA will „hold‟ the claim pending receipt of these papers. If papers are not forthcoming within one month of the first receipt of papers the NHS Litigation Authority reserve the right to reject the claim. C. OTHER TYPES OF CLAIMS Employment Law See Appendix G Damage to Trust Buildings or Theft of Trust Property This is covered by the Property Expenses Scheme (PES). The Patient Services Manager will receive, assess and notify property claims covered by the NHSLA‟s Property Expenses Scheme (PES) in conjunction with the relevant Associate Director, as detailed in the NHSLA PES manual. The following claims will be reported to the Scheme: All cases where the potential will exceed the excess (£20,000 buildings, £5,000 plant, machinery, contents) Cases within 20% of the excess, regardless of whether the Trust wishes the NHSLA to handle the claim on a sub-excess basis. Cases where the potential develops to the extent that the excess will be breached. The Patient Services Manager will work with the NHSLA claims handler in investigating the claim and providing appropriate information and evidence as required. Miscellaneous Claims Occasionally the PCT will receive a claim that is outside the main categories. The Patient Services Manager should seek advice from Trust solicitors as appropriate and determine a course of action.
Appendix E BACKGROUND INFORMATION NHSLA / National Health Service Litigation Authority: The National Health Service Litigation Authority (the Authority) is a Special Health Authority set up under Section 11 of the NHS Act 1977. Its date of commencement was 21 st November 1995.
The principal task of the Authority is to administer schemes set up under Section 21 of the National Health Service and Community Care Act 1990. This enables the Secretary of State to set up one or more schemes to help NHS bodies pool the costs of any “loss of or damage to property and liabilities to third parties for loss, damage or injury arising out of the carrying out of “their functions”. There are currently five schemes:
A scheme covering liabilities for alleged clinical negligence where the original incident occurred on or after 1st April 1995 (the “Clinical Negligence Scheme for Trusts” or CNST) A scheme covering liabilities for clinical negligence incidents which occurred before that date (the “Existing Liabilities Scheme” or ELS) A scheme covering the outstanding liabilities for clinical negligence in respect of the former Regional Health Authorities A Scheme relating to any liability to any third party where the original incident occurred on or after 1 April 1999 (the “Liability to Third Party Schemes” or LTPS); A scheme relating to any expenses incurred from any loss or damage to property where the original loss occurred on or after 1 st April 1999 (the “Property Expenses Scheme” or PES).
The PCT is a member of the CNST, LTPS and PES schemes.
Notification of all potential and actual claims should be sent to: Napier House, 24 High Holborn, London, WC1V 6AZ NHSLA authorisation is required before admissions may be made and compensation offered. If a claim is not correctly notified, the NHSLA will not reimburse any money given out by the PCT and payments outside the scheme may lead to criticism by auditors. Willis Ltd provides third party insurance for LTPS claims. Their website contains useful information. CPR / Civil Procedure Rules 1998: These Rules came into force in April 1999, and are a new procedural code with the overriding objective of dealing with cases justly. This includes, so far as practicable, ensuring that the parties are on an equal footing, saving expense, and dealing with cases in ways that are proportionate to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party. PAP / Pre-Action Protocols: These are intended to be an important aspect of the Civil Procedure Rules 1998. It is a base to resolve clinical disputes before legal proceedings are issued. The Clinical Negligence PAP must be followed in CNST cases, and the Personal Injury PAP must be followed in LTPS cases. Personal Injury Claims: These can be made by members of staff, visitors, patients or contractors who sustain an injury from trips, slips, falls, lifting etc due to the PCT‟s failure to provide a safe environment. Privileged/non privileged documents:
Appendix E Privileged documents are documents (e.g. statements, reports [not medical records]) that have been created following confirmation that litigation is contemplated. These documents are not discloseable by law. Non-privileged documents are those created prior to confirmation of litigation and are discloseable by law.
Appendix F FLOW DIAGRAM OF WHAT TO DO IN EVENT OF A CLAIM
Staff member becomes aware of a claim or potential claim (e.g., receipt of request for access to Health Records with litigation intended) and informs line manager Line Manager notifies the Patient Services Manager and the relevant Executive Director. The Claims Manager checks the claim is the responsibility of the PCT and if not the Chief Executive writes to the originator to inform. Patient Services Manager logs all claims/potential claims. and notifies the BSS A claims (potential) claims file is opened
Patient Services Manager liaises with PCT to obtain documentation & investigations gathered (e.g. copy of the incident file, health records etc). Root cause analysis undertaken
Patient Services Manager notifies and seeks advice of NHSLA
NHSLA manage the claim unless otherwise specified in the Procedures for Claims Handling
Patient Services Manager submits documentation to NHSLA in line with the Civil Procedures Rules.
Executive Director/Associate Director liaises & ensures appropriate support is provided for interested parties (such as staff involved). Communicate the key stages reached.
Patient Services Manager to provide regular reports to the Patient Focus Committee.
Associate Director to ensure all staff involved in the case are advised of the outcome and ensure that any learning from a claim is implemented, where applicable.
Handling of all employment related claims.
Introduction All employment related claims are handled through the Human Resources Department, with the Head of Human Resources taking overall responsibility for the handling of these claims. Such claims include all claims made via employment tribunal procedures (e.g. unfair dismissal, constructive dismissal, wrongful dismissal, discrimination, harassment, etc.) and any employment related claims presented to any other courts of law or judicial procedures (e.g. disclosure of information demands under the Data Protection Act). Employment related claims may be initiated by current members of staff, staff who have ceased to be employed by the PCT as well as people who have never been employed by the PCT (e.g. a claim of unlawful discrimination during the recruitment process). This does not include personal injury claims, which are subject to arrangements set out in the main procedure. Procedure to follow on receipt of an employment related claim Any member of staff in receipt of such a claim should inform the Head of Human Resources as soon as a claim has been received. The documentation should be date stamped for date of receipt and retained securely and confidentially by the member of staff until given to the Head of Human Resources. They will advise the Director of Provider Services and they will appoint a Lead Officer responsibility for the management of the claim. The Lead Officer will advise and consult with other appropriate members of the PCT‟s staff to manage the claim effectively and in accordance with the policies and the values of the Trust. If a member of staff, on receipt of a claim, is unsure whether it is employment related or not, they should contact the Head of Human Resources who will assist in determining the nature of the claim and whether to involve the Director of Provider Services. Settling employment related claims Agreement to settle a claim is not necessarily an acknowledgement of wrongdoing. Consideration of whether to proceed with litigation or to settle a particular case will be based on an assessment of the risks and costs associated with either route.
Wimbledon Bridge House Equality Impact Assessment Tool Hartfield Road
Name of Policy/Strategy
LondonAim of Policy/Strategy SW19 3RU of Lead Manager Name 0208 812 Does the policy/strategy 1. 7649 Email tracy.donnelly@wpct.nhs.uk target groups listed?
exclude particular equality
Claims Handling Policy and Procedure To detail the PCT process for handling claims Head of Governance Impact Assessment Race No Disability Gender Age Sexuality Religion & Belief Race Disability Gender No No No No No No No No
2. Does the policy/strategy affect any of the equality target groups listed disproportionately?
(Please provide evidence for your answer) 3. Are there barriers which could inhibit access to the benefits of the policy/ Strategy? E.g. communication/ information, physical access, location, sensitivity etc 4. Does the policy/ strategy gives different groups the same choices as everybody else? 5. What evidence has been used to make these judgements? Policy based on legal requirements as recommended by NHSLA
Age Sexuality Religion & Belief No
No No No
Yes
6. How is the effect of the policy/strategy on different equality target groups going to be monitored? Please specify for each equality group 7. What level of impact will this policy/strategy have?
Demographic data and other statistics, including census findings Recent research findings including studies of deprivation Results of recent consultations and surveys Results of ethnic monitoring data and any equalities data from the local authority/joint services Information from groups and agencies within Berkshire East Comparisons between similar functions/policies Analysis of PALS, complaints and public enquiries information Analysis of audit reports and reviews Race NA Disability NA Gender NA Age NA Sexuality NA Religion & Belief NA Comments Race No impact. Disability Gender Age Sexuality Religion & Belief